Paez v. Canada (Minister of Citizenship and Immigration), docket IMM-4778-98

Date: 19991026

Docket: IMM-4778-98

BETWEEN:

     VICTOR MAURICIO MUNOZ PAEZ

     ZAIDA AMINTA GOMEZ GUERRA

     ERICK MAURICIO MUNOZ GOMEZ

     VALERIA DENIS MUNOZ GOMEZ

     MARTA INES GUERRA VELIZ,

     Applicants

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application for judicial review under section 82.1 of the Immigration Act. The applicants are challenging the decision of the Immigration and Refugee Board which held that they were not Convention Refugee pursuant to the Immigration Act.

[2]      The applicants are citizens of Chile; Victor Mauricio Munoz Paez, born in 1964, his wife Zaida Aminta Gomez Guerra, their infant children Erick Mauricio Munoz Gomez and Valeria Denis Munoz Gomez, and Zaida's mother Marta Ines Guerra Veliz. They claim refugee status because of their political opinion and membership in a particular social group. They allege that they have suffered persecution at the hands of the Chilean government at different times since the fall of Salvador Allende. They claim that returning to Chile would mean ongoing persecution for all of them.

[3]      The applicant Martha (mother of Zaida) has, since 1960, been involved in and committed to the political philosophy advocated by Salvador Allende. Following the Pinochet coup in 1963, she was taken from her home many times and questioned by Chilean soldiers. In October, 1974, they detained her for three days and nights and she suffered "unspeakable atrocities" at the hands of the Pinochet forces. In April, 1975, she was arrested and detained for 49 days and she endured brutal treatment. Nine years later, in 1984, she was arrested a third time and detained for ten days. In the summer of 1995, after attending a meeting to plan an anti-Pinochet protest, she was allegedly grabbed on the street by three men. They treated her roughly, questioned her about the meeting she had been to and released her after an hour. Finally, in September, 1996, as she returned home from work, she was again forced into a van by four individuals. She claims to have suffered torture by immersion in deep vats of dirty water and that she was released the same day. She arrived in Canada on January 24, 1997 and claimed refugee status.

[4]      The applicant Victor, born in 1964, comes from a family strongly identified with union activities and the socialist movement which existed prior to the advent of Pinochet (1973 to 1988). For this reason, he alleges that he underwent punitive treatment while serving in the military from 1984 to 1986, which was during the Pinochet years. After his discharge in December, 1986, he was a member of the socialist party and was arrested and questioned by the Intelligence Service.

[5]      This applicant alleges that while fulfilling his military obligations at the Armored Cavalry School in 1984, he discovered hidden rooms that had served as cells and centres of torture for political opponents to the regime. He submits that he was told that the dead have been buried on the grounds of the Cavalry School. Contrary to what the applicant Marta revealed in her PIF (Personal Information Form), he testified that he revealed this information only after being in Canada. He fears that if he is returned to Chile he will be persecuted by the army for disclosing the "horrendous" crimes committed at the Calvary School. The Board concluded that he was not credible and that his testimony contained inconsistencies. It was also held that his experiences did not amount to persecution.

[6]      The applicant Zaida alleges that she suffered as a child during her mother's absences and blames Pinochet and his regime for the sorrow that befell her family. She submits that she experienced profound depression after the birth of her first child in 1987, partly because of the difficulties suffered by her husband at the hands of the government in power. The Board concluded that she did not have a well-founded fear of persecution in Chile.

[7]      The panel heard a witness, Frances Ann McQueen, who is co-ordinator of the Vancouver Association for the Victims of Torture. Ms. McQueen confirmed that she sent a fax to the Association for the Families of the Detained and Disappeared in Chile. The fax contained a rough drawing of the Cavalry School grounds, with different locations of the cells identified by the applicant Victor. The fax did not provide the applicant's name. Ms. McQueen received no acknowledgment of her communication, although she is certain that the fax reached its destination.

[8]      The applicant Victor alleges that those revelations have been publicized in the media. However, the Board notes that no publications have been produced. The applicant alleges that his family sent him three certified letters containing copies of the publications, but they all have been "lost" or not received. The Board considered this implausible.

[9]      The applicant Marta left for Canada after the revelations about the Cavalry School had been disclosed to the media by Victor. In her testimony, she first stated that she had not been aware of this, but then changed her testimony. The Board contends that it is not unreasonable to expect that she could have brought key media publications with her. Her testimony raises serious questions as to the existence of these publications and challenges the credibility of the statements made in this regard. The Board also suspects that a falsified document (a certificate) was produced by the applicants because of a spelling mistake. Consequently, the allegations of the applicants pertaining to this documents are rejected as being untrue.

[10]      The Board stresses that even if it is true that the applicant Victor has a link to the socialist movement in Chile dating back to the early Pinochet years, the reality is that since the emergence of democracy and free elections in Chile, the socialist party is legal and its members are not persecuted.

[11]      Although the Board accepts that the applicant Marta was arrested as a supporter of Allende, it found her testimony to be implausible and improbable.

[12]      The Board indicates that it is aware that the United Nations High Commissioner for Refugees has stated that the grounds for maintaining refugee status have ceased to exist in Chile.

[13]      The Board concluded that the statements of all applicants were not credible, plausible, logical or coherent; that they do not have a well-founded fear of persecution in today's Chile and that there was no justification to invoke compelling reasons.

[14]      The applicants argued that they were denied a fair hearing due to inadequate interpretation at the hearing. They alleged that interpretation and transcription errors occurred throughout the hearing. They further argued that the Board relied upon information to which the applicants were not given an opportunity to reply or for which there was no evidence; that the Board ignored evidence that was properly before it; and, finally, that the Board erred in its application of subsection 2(3) of the Immigration Act.

[15]      Little or no submissions were advanced with respect to the first grounds. The applicants identified two mistakes relating to the quality of the interpretation of their testimony. First, the applicant Victor alleges that he would have said "I haven't receive it" instead of "I had a receipt". This mistake arose when the applicant was mentioning that his family sent him letters containing copies of the publications about the crimes at the Cavalry School. Another problem arose in the interpretation of the word "diaro", whether this word could mean a weekly newspaper. The applicant contends that the interpreter's errors may have influenced the Board in its assessment of the applicant's credibility and that as a result he has been denied natural justice. I have not been satisfied that these passages, even if they were misinterpreted, are central to the determination.

[16]      On the second issue, the applicants argue that they were not given an opportunity to explain the alleged spelling mistake on a document; the document was suspected to be falsified because of that mistake. The respondent later contended that the Board erred in this regard, but argued that it identified other problems with the document supporting negative credibility findings.

[17]      It is well established that a tribunal must give a claimant full opportunity to explain any contradictions in the evidence, otherwise there is of failure of fairness (See Randhawa v. Canada [1998] F.C.J. No. 749 and Gracielome v. Canada (1989) 9 Imm.L.R. (2d) 237 (F.C.A.). However, in Shah v. Canada, [1994] F.C.J. No. 1299, Hugessen J. stated "It is a commonplace that the content of the duty to fairness varies according to the circumstances. In the present case we are all of the view that such content is minimal". He further affirmed that "the officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concerns her. Of course, if she is going to reply on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision".

[18]      The question is whether the result of the decision would have been different even if the Board had concluded that the document was genuine. In this case, it probably would not, due to the fact that the Board found other inconsistencies, central to the main issue, between the applicant's testimony and the content of the document.

[19]      The Board considered all of the evidence before it and found that the applicants were not credible witnesses. In Hossein, [1990] F.C.J. No. 1080, it was stated that the Immigration and Refugee Division, a specialized tribunal, is presumed to have considered all of the evidence.

[20]      In Canadian Union of Publici Employee, Local 301 v. Montreal, [1997] 1 S.C.R. 793, it was written that "Courts must not revisit the facts or weight the evidence". The Federal Court should not reevaluate the importance of some element of the evidence.

[21]      In addition, in Vessaova v. Canada, [1996] F.C.A.D. 1598-04, it was affirmed that "the Immigration board has full discretion with respect to the analysis of credibility of witnesses and claimants who appear before it". In Aguebor, (1993) F.C.S. No. 732, the Court held that "As long as the interferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review".

[22]      As for the final submission of the applicants, that the Board has, in its findings, failed to properly evaluate Victor and his wife Zaida and did not properly analyze subsection 2(3) of the Immigration Act as it concerned them with respect to the issue of compelling reasons, the Board wrote at page 18 of the decision:

[23]      I am satisfied that the issue was considered vis-à-vis Victor and his wife. In Hassan v. M.E.I., 77 F.T.R. 309, Rothstein J., as he then was, referred to Canada v. Obstoj, [1992] 2 F.C. 739 in the following terms:

[24]      The Board's decision cannot be qualified of unreasonable. Accordingly, the application for judicial review is dismissed.

                                     JUDGE

OTTAWA, Ontario

October 26, 1999